COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Kelsey and McClanahan
Argued at Alexandria, Virginia
LYSA SCHWARTZ
OPINION BY
v. Record No. 2885-04-4 JUDGE LARRY G. ELDER
JULY 26, 2005
ADAM SCHWARTZ
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Mark B. Sandground, Sr. (M. Rachel Kanukolanu; Sandground
New & Lowinger, P.C., on brief), for appellant.
Ilona Ely (Freedman) Grenadier (Charles A. Anderson; Stephen K.
Simpson; Arlene Starace; Benton S. Duffett, III; Elaine Vadas; John
Winkler; Lisa Levi; Grant Moher; Heather Jenquine; Grenadier,
Anderson, Simpson & Duffett, P.C., on brief), for appellee.
Lysa Schwartz (mother) appeals from an order finding her in contempt of a consent
pendente lite order that she entered into with her husband, Adam Schwartz (father), concerning,
inter alia, the parties’ two minor children. On appeal, mother contends the court violated Code
§ 20-124.3:1 by admitting testimony about her from the children’s therapist without her consent.
Mother also contends that, in light of the erroneous admission of this evidence, the trial court
erred in requiring her to pay a portion of the attorney’s fees father incurred for the contempt
proceedings. We hold the admission of the challenged evidence was reversible error. Thus, we
reverse the finding of contempt, vacate the award of attorney’s fees, and remand for a
determination anew in light of the evidence properly before the court.
I.
BACKGROUND
The parties were married in 1988. Two children were born of the marriage, the first in
1992 and the second in 1995. On February 18, 2004, mother filed a bill of complaint for divorce,
alleging the parties were living separate and apart in the marital residence.1 She also filed a
motion for pendente lite relief. Father filed a cross-bill for divorce and his own motion for
pendente lite relief. The court subsequently entered a consent pendente lite order and amended
consent pendente lite order.
Thereafter, father filed a verified petition for issuance of a rule to show cause, and mother
filed a similar petition. Father complained, inter alia, that mother violated the provision of the
consent order that neither party was to denigrate or ridicule the other parent to the children. He
also complained that mother failed to keep him apprised of the children’s schedules as required
by the order, failed to use a computer program to facilitate that communication as required by the
order, and “continually encroached on [his] custodial time with [the] children.” The trial court
issued rules to show cause for both petitions and scheduled them for hearing on October 14,
2004. At the time of the hearing on the rule, father also complained that mother moved out of
the marital residence with the children without giving him thirty days’ notice of her new address
as required by the order.
Father offered the testimony of licensed clinical psychologist Dr. Guy Van Syckle.
Mother objected to his testimony under Code § 20-124.3:1 because that statute “states, No
mental health provider shall testify on behalf of or against a parent unless they have advanced
written consent by that party.” Father responded that Dr. Van Syckle was not the mental health
1
Mother originally sought a divorce on fault grounds, but she and father later agreed to
proceed based on a one-year separation.
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care provider for either parent. The trial court overruled mother’s objection, stating, “He’s a
mental health care provider for the children. The best interest of the children still prevails as a
standard of this Court.”
Dr. Van Syckle testified that the parties were referred to him “by their attorneys . . . at the
beginning of April [2004].” When asked, “And did you then become the therapist for the
children?”, Dr. Van Syckle responded as follows: “I became what was called a co-parenting
coordinator, co-therapist for the parents with the understanding I would eventually meet and
work with the children.” He was “not retained to do a neutral custody evaluation” and testified
he was not at the show cause hearing to render “an opinion or recommendation regarding
custody and visitation.”
Dr. Van Syckle met with each parent individually for one session and met with them
together for four or five sessions. He then met with the children for about eight sessions, during
four of which they were accompanied by mother and four by father. He may also have had
individual sessions with only the children. Dr. Van Syckle gave extensive testimony regarding
the parties’ interactions with each other and their children, as well as what the children said
about their parents and what the parents said about each other. That testimony included
Dr. Van Syckle’s statement that he “got quite a bit of information from the children [that father]
was being undermined as a parent in the home” by mother. Dr. Van Syckle also observed that
mother “would spend the entire session with the children devaluing their father outright” and
said he could “not recall a supportive statement [about father] that she did make during any of
the sessions,” either alone or in the presence of the girls, which he described as “unusual.”
Father also testified about mother’s failure to comply with the consent pendente lite
order. Mother gave testimony that conflicted with father’s and Dr. Van Syckle’s.
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In argument on the rule, father’s counsel repeatedly relied on the testimony of
Dr. Van Syckle as evidence from a “totally neutral” person that mother “ha[d] done everything
she [could] to make sure [the provisions of the consent pendente lite order] didn’t work” and that
she had repeatedly denigrated and devalued father in the presence of the children. Father asked,
inter alia, that mother be ordered “to pay for the time that it has taken us [and Dr. Van Syckle] to
be here.”
At the conclusion of the hearing on father’s show cause rule, the court found as follows:
[Mother], you’ve got to abide by the Court’s order. I find as
clear[ly] and unequivocally as I can find, in this case, you have not
done that. You have violated this Court’s order in the worst
possible ways.
First of all, you moved without 30 days’ notice. And I’ll be
candid with you. That doesn’t cause me great heartache. . . . It’s a
technical violation of the order. That, in and of itself, is sufficient
to find you in contempt. However, when I listen to the testimony,
particularly Dr. Van Syckle’s -- you know, your discussions with
your children, you[r] denigrating [father]. All of that is
unacceptable . . . .
One of the things you need to be aware of is that one of the
criteria for custody is the ability of the custodial parent to foster the
relationship of the children with the noncustodial parent. That’s
positive fostering. I find on this record you have zero positive
fostering. Dr. Van Syckle even said it, you didn’t have one single
positive thing to say about the girls’ father. I mean, there has got
to be something that he does well, even if he’s just a good soccer
coach. Not one -- not one positive thing.
* * * * * * *
. . . I’m going to postpone a determination as to what to do
with the contempt of [mother] until the next hearing until I’ve
heard the . . . rule to show cause [against father]. But I will tell
you that there better be some cooperation between the two of you
over the children.
The court then entered an order finding mother in contempt. That order did not articulate
the precise basis on which the contempt finding was predicated, but it did indicate that until such
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time as the court determined the appropriate sanctions for the contempt, “the parties are expected
to cooperate with each other with respect to the children and with respect to fostering the
relationship between the children and each parent.” Mother objected to the finding of contempt
on the ground that “the only evidence of such was the testimony of the children’s mental health
provider, who provided testimony for the father and against the mother, over the mother’s
objection pursuant to Va. Code § 20-124.3:1” and that “[t]he admission of such testimony
constituted error.”
When the parties returned to court about six weeks later, on December 2, 2004, father
offered testimony that mother continued to violate the order and again requested an award of
attorney’s fees. In argument, father’s counsel again referred to the testimony of Dr. Van Syckle,
arguing, “[Mother] does not want [father] to be a participating parent; that is clear.
Dr. Van [Syckle’s] words are still ringing in my mind, she hates him.” Mother’s attorney and the
court then engaged in the following exchange:
[MOTHER’S ATTORNEY]: . . . I hate to keep coming
back to this -- but I do need to point out that -- and particularly
because [father’s attorney] keeps wanting to, you know, quote or
paraphrase from Dr. Van [Syckle’s] testimony -- is that Dr. Van
[Syckle’s] testimony came in over my objection, contrary to the
statute. And the whole reason that she was found in contempt is
because there was inadmissible evidence that was heard.
THE COURT: Well, I’ve already ruled on that. And the
reason that she was found in contempt was because of her conduct,
her program of not permitting the father -- who she had joint
custody with -- to have time with the children.
Her comments like these kids only need one parent,
denigrating the other parent in front of the children. And in fact, if
you recall, Dr. Van [Syckle] said he even had that conduct in his
office, and he had to call her down about it and say, don’t do that
when we’re having a joint session here, right?
[MOTHER’S ATTORNEY]: Your Honor wouldn’t have
heard any of that if that evidence hadn’t come in contrary to the
statute.
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THE COURT: There was a host of other evidence in
addition to that about her conduct, so I don’t think that’s a viable
defensive position. But I hear your argument.
On the issue of attorney’s fees, the court noted it had conducted two hearings and had
“found in very clear and unambiguous terms that [mother] was clearly in violation of the Court’s
order.” As a result, it ordered mother to pay $8,000 toward father’s attorney’s fees. It entered an
order to that effect, and mother again noted her objection, claiming the court improperly allowed
Dr. Van Syckle to testify over her objection and that “there was no admissible evidence to
support the finding of contempt.”
Mother noted this appeal.
II.
ANALYSIS
Code § 20-124.3 requires a court to consider, inter alia, the “mental condition of each
parent” in determining what custody or visitation arrangements are in the best interests of the
child. See also Code § 20-107.1(E)(4) (requiring consideration of “[t]he age and physical and
mental condition of the parties and any special circumstances of the family” in determining
spousal support); Code § 20-107.3(E)(4) (requiring consideration of “[t]he ages and physical and
mental condition of the parties” in equitably distributing marital property).
Prior to July 1, 2003, the only statutes governing the admissibility of the testimony of a
licensed mental health care provider in a child custody or visitation proceeding were Code
§ 8.01-399, which applied to any “duly licensed practitioner of any branch of the healing arts,”
and Code § 8.01-400.2, which applied to certain licensed professional counselors, clinical social
workers and psychologists. Both provided a privilege for diagnosis and treatment the provider
gave his or her “patient” or “client” and for any communications made by the “patient” or
“client” in the course of the professional relationship. Code §§ 8.01-399(A), -400.2. However,
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both statutes provided the privilege was inapplicable if “the physical or mental condition of the
[patient or client] is at issue in [a civil] action.”2 Code §§ 8.01-399(B), -400.2.
2
Those statutes provided in relevant part as follows:
Code § 8.01-399. Communications between physicians
and patients.
A. Except at the request or with the consent of the patient,
or as provided in this section, no duly licensed practitioner of any
branch of the healing arts shall be required to testify in any civil
action, respecting any information that he may have acquired in
attending, examining or treating the patient in a professional
capacity.
B. If the physical or mental condition of the patient is at
issue in a civil action, the diagnosis or treatment plan of the
practitioner, as documented in the patient’s medical record, during
the time of the practitioner’s treatment, together with the facts
communicated to, or otherwise learned by, such practitioner in
connection with such attendance, examination or treatment shall be
disclosed but only in discovery pursuant to the Rules of Court or
through testimony at the trial of the action. In addition, disclosure
may be ordered when a court, in the exercise of sound discretion,
deems it necessary to the proper administration of justice. . . .
Code § 8.01-399 (emphasis added).
Code § 8.01-400.2. Communications between counselors,
social workers and psychologists and clients.
Except at the request of or with the consent of the client, no
licensed professional counselor, as defined in § 54.1-3500,
licensed clinical social worker, as defined in § 54.1-3700, or
licensed psychologist, as defined in § 54.1-3600, shall be required
in giving testimony as a witness in any civil action to disclose any
information communicated to him in a confidential manner,
properly entrusted to him in his professional capacity and
necessary to enable him to discharge his professional or
occupational services according to the usual course of his practice
or discipline, wherein such person so communicating such
information about himself or another is seeking professional
counseling or treatment and advice relative to and growing out of
the information so imparted; provided, however, that when the
physical or mental condition of the client is at issue in such action,
or when a court, in the exercise of sound discretion, deems such
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As cited above, custody and visitation proceedings require courts to consider the mental
health of the parties. See Code § 20-124.3. Thus, “lawyers and judges have been accustomed to
breaching this area of confidentiality [in the context of custody and visitation] because the
patient has placed his or her mental condition at issue.” Elizabeth P. Coughter & Ronald R.
Tweel, Family Law, 37 U. of R. Law Rev. 155, 170 (2002). The provisions of Code §§ 8.01-399
and -400.2 specifically support this result.
In 2002, however, the General Assembly passed new legislation specifically limiting the
admissibility of mental health records in child custody and visitation proceedings. Code
§ 20-124.3:1, which took effect July 1, 2003, provides as follows:
A. Notwithstanding any other provision of law, in any case
in which custody or visitation of a minor child is at issue pursuant
to § 20-124.2, whether in a circuit or district court, the records
concerning a parent, kept by any licensed mental health care
provider and any information obtained during or from therapy shall
be privileged and confidential.
B. In any case in which custody or visitation of a minor
child is at issue pursuant to § 20-124.2, whether in a circuit or
district court, a mental health care provider licensed in the
Commonwealth may not be required to testify on behalf of or
against a parent or any of the parent’s adult relatives, and may do
so only with the advance written consent of the parent. If the
mental health care provider testifies, such testimony shall be
limited to the custody or visitation case in question, and the
provider’s records and notes regarding that parent shall be
admissible in the court proceeding. However, the court may order
a licensed mental health care provider to testify on matters
specifically related and limited to suspicion of an abused or
neglected child as defined in § 63.2-100 of the Code of Virginia.
disclosure necessary to the proper administration of justice, no fact
communicated to, or otherwise learned by, such practitioner in
connection with such counseling, treatment or advice shall be
privileged, and disclosure may be required. The privileges
conferred by this section shall not extend to testimony in matters
relating to child abuse and neglect nor serve to relieve any person
from the reporting requirements set forth in § 63.2-1509.
Code § 8.01-400.2 (emphasis added).
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C. Nothing in this section shall supercede the provisions of
§ 63.2-1509 of the Code of Virginia related to the required
reporting of suspicion of an abused or neglected child.
D. This section shall not apply to mental health care
providers who have conducted or are conducting an independent
mental health evaluation pursuant to a court order.
Mother contends that Code § 20-124.3:1 prevented husband from offering testimony
about her from the mental health care provider appointed by the court to counsel the parties’
children. Father contends, as the trial court ruled, that Code § 20-124.3:1 applies only when the
parent is the patient. We agree with mother and hold that, in this case “in which custody or
visitation of a minor child is at issue pursuant to § 20-124.2,”3 the trial court erroneously
admitted testimony “concerning a parent” that constituted “information obtained during . . .
therapy.”
“‘[T]he province of construction is wholly within the domain of
ambiguity, and that which is plain needs no interpretation.’”
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 34, 366 S.E.2d 271,
273 (1988) (quoting Winston v. City of Richmond, 196 Va. 403,
407-08, 83 S.E.2d 728, 731 (1954)). “‘Non-technical words in
statutes are taken to have been used in their ordinary sense and
acceptation.’” Gomes v. City of Richmond, 220 Va. 449, 452, 258
S.E.2d 582, 584 (1979) (quoting Bd. of Supers. v. Boaz, 176 Va.
126, 130, 10 S.E.2d 498, 499 (1940)). . . . “Where the legislature
has used words of a plain and definite import the courts cannot put
upon them a construction which amounts to holding the legislature
did not mean what it has actually expressed.” Dominion Trust Co.
v. Kenbridge Constr., 248 Va. 393, 396, 448 S.E.2d 659, 660
(1994) (citations omitted).
Crislip v. Commonwealth, 37 Va. App. 66, 71-72, 554 S.E.2d 96, 98 (2001). Further, statutes on
the same subject matter, i.e., those standing in pari materia, must be considered together and
harmonized if possible. Lambert v. Barrett, 115 Va. 136, 141, 78 S.E. 586, 587 (1913).
3
Although the instant proceeding was for contempt, the larger suit of which it was a part
included custody and visitation issues, which the trial court’s comments about “positive
fostering” made clear.
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The language in Code § 20-124.3:1 is plain. Subsection (A) refers in broad terms to “the
records concerning a parent, kept by a licensed mental health care provider and any information
obtained during or from therapy.” Code § 20-124.3:1(A) (emphasis added). Subsection (B)
provides that the mental health care provider “may not be required to testify on behalf of or
against a parent or any of the parent’s adult relatives” without “the advance written consent of
the parent.” Code § 20-124.3:1(B) (emphases added).
Nothing in the language of Code § 20-124.3:1 as enacted requires that the parent must
have been a patient in order to invoke the privilege. The language in the bill originally
introduced in the House of Delegates, in contrast, referred to “a patient” rather than “a parent”
and required consent of “the patient” before a mental health care provider could be “required to
testify on behalf of or against a patient or any of the patient’s relatives.”4 See H.B. 1001 (Jan. 9,
4
The bill originally offered provided as follows:
§ 20-124.3:1. Custody and visitation; independent
evaluations; arrangements; admissibility.
A. In any case in which custody or visitation of minor
children is at issue pursuant to § 20-124.2, whether in a circuit or
district court, the court may order an independent custody
evaluation to assess the best interests of the child. The evaluations
shall be performed by a psychiatrist, clinical psychologist,
professional counsel, clinical social worker, or nurse practitioner
specializing in mental health care who is licensed in the
Commonwealth and, in the opinion of the court, is objective and
impartial and appropriately qualified to perform an independent
custody evaluation. The evaluator shall be a person who is
familiar with the laws and regulations relating to suspicion of child
abuse and neglect and family violence. A person who has ever
provided mental health services to any member of the immediate
family may not perform the evaluation.
B. The evaluator shall inform the persons being evaluated
of the purpose, nature and method of evaluation and that the
information obtained during the evaluation may be disclosed
pursuant to a court proceeding. The evaluator shall properly apply
techniques for interpretation and assessment that are reliable, valid
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2002). The House Committee for Courts of Justice then proposed a substitute bill that referred to
“a parent” rather than “a patient,” and the bill proceeded with that language. H.B. 1001 (as
substituted Feb. 8, 2002). Because the statute as enacted refers to “a parent,” coupled with
legislative history implying a rejection of language limiting the privilege to “a patient,” we must
give the term, “parent,” its ordinary meaning.
Interpretation of the statute by comparison to other, similar statutes supports this result.
Code §§ 8.01-399 and -400.2, in contrast to Code § 20-124.3:1, refer to the “patient” or “client”
of a health care provider, showing that the General Assembly clearly knew how to limit a
privilege in this fashion when it so desired.
Finally, the General Assembly included only a limited number of exceptions to the
parental privilege of Code § 20-124.3:1. The statute provides that “the court may order a
licensed mental health care provider to testify on matters specifically related and limited to
suspicion of an abused or neglected child as defined in [Code] § 63.2-100” and that “[n]othing in
and standardized. The evaluator shall assess the parenting capacity
of the parties and the psychological and developmental needs of
the child and the extent to which the child’s needs can be met by
the parenting capacity of a party. The evaluator shall not include
any opinion regarding the psychological functioning of any
individual who has not been personally evaluated by the evaluator.
C. The evaluator shall not have access to the records of a
mental health care provider who provided mental health care to
any relative of the person being evaluated. The records of any
licensed mental health care provider and any information obtained
during or from therapy shall be privileged and confidential.
D. A mental health care provider licensed in the
Commonwealth may not be required to testify on behalf of or
against a patient or any of the patient’s relatives, and may do so
only with the advance written consent of the patient. If the mental
health care provider testifies, such testimony shall be limited to the
custody or visitation case in question, and the provider’s records
and notes regarding that patient shall be admissible in the court
proceedings.
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this section shall supercede the provisions of [Code] § 63.2-1509 . . . related to the required
reporting of suspicion of an abused or neglected child.” Code § 20-124.3:1(B), (C). It also
exempts from the privilege “mental health care providers who have conducted or are conducting
an independent mental health evaluation pursuant to a court order.” Code § 20-124.3:1(D).
Noticeably absent from Code § 20-124.3:1 is the provision contained in Code §§ 8.01-399 and
8.01-400.2 that permits disclosure “when a court, in the exercise of sound discretion, deems
[such disclosure] necessary to the proper administration of justice.” Code §§ 8.01-399(B),
-400.2. In addition, Code § 20-124.3:1 provides no exception permitting the trial court to order
disclosure for the broad purpose of determining the best interests of the child. Rather, Code
§ 20-124.2 embodies the General Assembly’s chosen method for protecting the best interests of
the child; it permits the court to “order an independent mental health or psychological evaluation
to assist the court in its determination of the best interests of the child.” Absent such an
independent evaluation (and absent any suspicion of abuse or neglect), information “concerning
a parent . . . obtained during or from therapy shall be privileged and confidential” and may not be
disclosed without the parent’s consent. Code § 20-124.3:1(D).
Thus, the trial court’s admission of Dr. Van Syckle’s testimony about mother, given
without her written consent and over her express objection, was error.
Although the court erred in admitting Dr. Van Syckle’s testimony, that error does not
require reversal if we determine the error was harmless. Clay v. Commonwealth, 262 Va. 253,
259, 546 S.E.2d 728, 731 (2001); Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991) (en banc); see Ferguson v. Commonwealth, 240 Va. ix, ix, 396 S.E.2d
675, 675 (1990) (citing Code § 8.01-678 for the proposition that “harmless-error review is
required in all cases”). We conclude the error in admitting Dr. Van Syckle’s testimony was not
harmless.
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In Virginia, non-constitutional error is harmless “[w]hen it plainly appears from the
record and the evidence given at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached.” Code § 8.01-678.
“If, when all is said and done, [it is clear] that the error did not
influence the [fact finder], or had but slight effect, . . . the
judgment should stand . . . . But if one cannot say, with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. . . . If so, or if one is left in
grave doubt, the [judgment] cannot stand.”
Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos v. United States, 328 U.S. 750,
764-65, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557, 1566-67 (1946)).
Under this standard, non-constitutional error is harmless if other evidence of guilt is so
“overwhelming” and the error so insignificant by comparison that we can conclude the error
“failed to have any ‘substantial influence’ on the verdict.” United States v. Lane, 474 U.S. 438,
450, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814, 826 (1986) (quoting Kotteakos, 328 U.S. at 765, 66
S. Ct. at 1248, 90 L. Ed. at 1567); see also United States v. Hornaday, 392 F.3d 1306, 1316-17
(11th Cir. 2004), cert. denied, 73 U.S.L.W. 3733 (June 20, 2005) (discussing Kotteakos harmless
error standard in context of “overwhelming” evidence of guilt). Also relevant to the harmless
error analysis is whether the evidence admitted in error is merely “cumulative” of other,
undisputed evidence. Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S. Ct. 1710, 1722, 123
L. Ed. 2d 353, 373-74 (1993) (in analyzing whether error was harmless under Kotteakos
standard, considering fact that improper “references to petitioner’s post-Miranda silence were, in
effect, cumulative” “in view of the State’s extensive and permissible references to petitioner’s
pre-Miranda silence”); cf. Ferguson v. Commonwealth, 16 Va. App. 9, 12, 427 S.E.2d 442,
444-45 (1993) (applying Virginia harmless error standard prior to express adoption of Kotteakos
test to hold error harmless if “other evidence of guilt is ‘so overwhelming and the error so
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insignificant by comparison that the error could not have affected the verdict,’” or, “even if the
evidence of the defendant’s guilt is not overwhelming, if the evidence admitted in error was
merely cumulative of other, undisputed evidence” (quoting Hooker v. Commonwealth, 14
Va. App. 454, 458 n.2, 418 S.E.2d 343, 345 n.2 (1992))).
Here, Dr. Van Syckle provided the only independent testimony about the parties’
relationship and mother’s criticism of father in the presence of the children. Father’s counsel
relied repeatedly on Dr. Van Syckle’s testimony in arguing that mother should be held in
contempt for denigrating father to the children. Further, in finding mother in contempt due to her
“unacceptable” behavior, the trial court said it “listen[ed] to the testimony, particularly Dr. Van
Syckle’s -- . . . mother’s discussions with [the] children, [mother’s] denigrating [father].” In later
argument on the appropriate sanctions, the court again relied heavily on Dr. Van Syckle’s
testimony about mother’s denigrating father in front of the children. Although the trial court
subsequently said there was “a host of other evidence in addition to [Dr. Van Syckle’s testimony]
about her conduct,” father’s testimony regarding mother’s denigration of father was not nearly as
specific as Dr. Van Syckle’s testimony and did not include evidence of the children’s reaction to
mother’s behavior. Father testified merely that mother would not exchange pleasantries with
him in front of the children and did not support his efforts to review their homework or enforce a
particular bedtime. Dr. Van Syckle, by contrast, testified that mother called father names,
criticized him in front of the children, and reduced one of the children to tears when the child
questioned mother’s negative comments about father. Although the trial court was free to find
father’s testimony more credible than mother’s, we cannot conclude on this record that the
erroneous admission of Dr. Van Syckle’s testimony “did not influence” the trial court or “had but
slight effect” on its decision to reject mother’s testimony and hold her in contempt. See Clay,
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262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos, 328 U.S. at 764, 66 S. Ct. at 1248, 90
L. Ed. at 1566).
Thus, we hold the trial court’s erroneous admission of Dr. Van Syckle’s testimony was
not harmless.
III.
For these reasons, we reverse the finding of contempt, vacate the award of attorney’s
fees, and remand for a determination anew in light of the evidence properly before the court.
Reversed and remanded.
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